To undertake legal research and carry out it effectively, one needs to understand the sources of law and their relationship to each other, legal system functions, and fundamental legal principles. Essential steps of legal research include identifying a legal problem or issue, discovering information about such problem or issue, and developing explanations or arguments about the problem.
1. Beginning of a Research Project
It is often difficult for a young researcher to start a research work. Therefore, before undertaking research, one should consider the following issues:
- The time frame of the completion of the study.
- Prior knowledge of the research topic.
- What is the purpose of the study?
- What are the scope and limitations of the study?
- What and how much information is needed?
- Structure of research and method of finding sources.
- How will techniques of gathering information be adopted?
- Where can needed information be found?
- Identifying the issues and generating keywords.
2. Selection of a Research Topic
The selection of a research topic is the starting point of undertaking research.
However, many researchers face problems finding a suitable topic and narrowing it down. The choice of the appropriate topic should be influenced by the researcher’s interest, abilities, and level of knowledge in a particular area.
For finding out a topic, it is always better to start with a consultation with secondary sources such as books or law journals. Reading books and journals can provide an overview of the research topic and references important cases and statutes relevant to the chosen research area.
However, the choice of a research topic depends on a researcher’s interests and background.
A researcher can choose a topic either to know the unknown or refute some existing theories.
But the selection of a topic needs careful consideration of various factors, including social relevance of the issue and time and resource constraints of achieving the goals of a particular research project.
Vague, irrelevant, too narrow, or too broad topics have little chance of achieving the focus and direction of a successful writing piece
. For example, the legal research topic may cover any legislative scheme, jurisprudential debate, or contemporary legal issue.
It can address a new statute, a new constitutional rule, a new interpretation of a statute, a new enforcement principle, or a novel application of a general principle to a certain case. The research topic may concentrate on new problems or issues or new law reform, or a new theoretical perspective.
However, one needs to be careful in selecting a topic;
- whether it is relevant to the course/program for which one is writing?
- Is it interesting?
- Is it doctrinally sound? Does it have the potential for any original contribution?
- Why is the topic special or necessary?
- How does the topic fit into the legal or policy context?
The answers to these and similar questions require intensive and wide reading and decisions between interesting and competing areas and issues.
The title of the topic should be comprehend-be by the readers. Clarity and proper word choice are essential in formulating the title.
Before selecting a topic, the researcher must be well aware of the area to undertake the research.
He should have background knowledge of the findings of the studies of others in the field. He should be well conservant with different theories in the field.
Finally, the researcher should have a critical, curious, and imaginative frame of mind.
3. Justification, Purpose, and Relevance of Research
Why do we conduct research?
Because we want to fill a gap in our knowledge, or we want to challenge or test currently accepted theories against new evidence, or simply because we want to reform the existing system.
Before researching any aspect of legal discipline, the researcher should consider the research topic’s justification and relevance.
The purpose and justification of research should be clearly spelled out in a research job. It should be understood precisely and right from the beginning.
The researcher should underline the significance of the research work and show how the research will contribute to the development of the discipline.
The researcher should bear in mind the following issues
- Is the research topic timely and interesting?
- Will it make any original contribution to a field of legal knowledge?
- What is the scope of research?
- Does it deal principally with legislation, doctrine, or policy0
- Does it have practical implications?
- Is it a new issue? What remains to be explored0
- Why is the research unique, and what special objectives are to be achieved?
- Will the topic contribute to the ongoing academic debate on the issue? Will it develop a new theory?
A researcher should also consider;
- who is the targeted audience of the proposed research?
- Will the proposed research be addressed to academics, policymakers in government, policymakers in the private sector, or civil society?
A researcher should clearly mention the purpose of the research. A statement of purpose indicates the focus and direction of the research and provides criteria for the evaluation of the outcomes of the research.
A clear statement of the purpose of research is important for three reasons:
- First, it allows readers to understand the research better.
- Second, setting a clear vision of the purpose of research provides a crucial basis for evaluating the research from the reader s point of view.
- Third, clarity of purpose allows the researcher to identify a relatively narrow and precise area of investigation rather than setting out to investigate some general area of interest.
A researcher should demonstrate that the research meets the needs of society and address current legal issues, policy, and practice. Thus, legal research can be driven by the desire to tackle some practical legal problems rather than being driven specifically by the needs of theory development.
Good research must demonstrate its relevance in terms of its potential contribution to existing knowledge, practical needs, and timeliness regarding current issues.
4. Designing Research Question
The next step is to define or formulate a research problem that can be answered using the proper methodology. Research questions specify exactly what is to be investigated.
It involves the identification of important legal issues. The research question should be set out in the introductory part of the research. The research question provides a focal point of research.
The research question provides some guidelines for methodologies. Designing a well-crafted research question requires collecting and reading the background information.
To formulate the question properly, the researcher should have an idea of a broad perspective and a general view of the problem as a whole. The research questions should draw upon a review of the existing literature.
Therefore, the research problem should be formulated clearly and precisely to avoid becoming ambiguous or contradictory.
A research proposal should explicitly contain one central research question and elaborate sub-questions closely associated with the central one. The research question also implicitly acts as a justification for undertaking a research project.
So designing of the research question should reflect the research objective. But more importantly, the research question should strike a new ground for investigation and scientific inquiry and pose a problem that requires detailed analysis.
Research questions are often formulated using words such as ‘what,’ ‘when,’ ‘where,’ and ‘how.’ ‘What,’ ‘when,’ and ‘where’ questions seek descriptive answers, while ‘why’ and ‘how’ questions seek understanding and explanation.
The research questions should be specific and answerable for conducting fruitful research.
In designing a research question, the following points should be considered:
- What laws and policies are currently in place regarding a particular issue?
- How are those laws and policies applied?
- Is the current law satisfactory in terms of remedies it provides?
- What reforms were proposed?
- What reform was actually put in place? Has the law achieved its aim?
- What is the current law, and why is it perceived as needing reform?
- Where can we look for guidance on reform from other jurisdictions?
- What legal theories have been applied to the area of study?
- Does a particular theory drive the current law?
- Can a different theoretical perspective be taken?
The research questions are important for the following reasons:
- they provide a framework for writing up the legal research project or thesis;
- they delineate the scope of research, showing its boundaries; -they guide the literature search of the given research project;
- guide researcher in deciding what data need to be collected; -guide analysis of data.
Research questions should be clear. Research questions should not be formulated in very abstract terms. They should have some connections with established theories and concepts.
If there is more than one question, all should be linked to each other. Research questions should hold the prospect of making an original contribution – however small- to the topic.
5. Formulation of Hypothesis
The researcher must set one or more working hypotheses before proceeding with his work. The hypothesis is nothing but a tentative assumption or proposition.
The validity or way remains to be tested. It is not an opinion, a value judgment, or a normative statement. It is a logical consequence of research. Question.
As in previous reading, research, and observation, a hypothesis is an informed assumption.
In other words, the hypothesis is a proposition rephrased from the research question, and the subsequent study might prove or disprove it. It may follow from a theory or result of previous research.
But hypotheses can play an important role in the development of new theories.
A hypothesis also provides a tentative solution to the problem and helps in systematically building an argument. A hypothesis must be stated in clear and simple language and should be capable of verification.
A working hypothesis helps the researcher concentrate only on relevant factors and avoid irrelevant ones. In addition, a hypothesis serves to link together related facts and information and provides direction to research.
According to one author, the hypothesis’s role is to guide the researcher by delimiting the area of research and keep him on the right track. It sharpens his thinking and focuses on the more important facets of the problem.
Working hypothesis arises from prior thinking about the subject, examining the available data and material, including related studies, and the counsel of experts and interested parties. Working hypotheses are more useful when stated in precise and clearly defined terms.
A hypothesis should be developed in the initial stage of research. However, as research proceeds, the original hypothesis might change with discovering new facts that are not anticipated at the initial stage.
Therefore, a researcher should be flexible and open-minded in revising the original hypothesis.
A hypothesis should be formulated carefully to draw proper and reasonable conclusions at the end of the research. But most importantly, it must be testable.
6. Literature Review
Before addressing substantive issues, a researcher should conduct an extensive literature review.
In addition, a literature review may refer to reviewing concepts and theories and previous ‘research findings.’
Literature review mainly refers to consulting general secondary sources to get an overview of all relevant research subject areas. According to Hutchinson, “The literature review justifies your research.
It does more than simply summarise what you have read. It places your research in context. It aims to synthesize, analyze and critique the state of knowledge and research in your stated area.”
However, the literature review is not simply a passive assessment of the state of knowledge but an active synthesis of that knowledge within the researcher’s particular interest. The ultimate aim of the literature review is to provide an overview of relevant published works.
The literature review is essential to understand what is currently known about a problem. The literature review also helps to avoid duplication of effort.
No matter what topic a researcher chooses, the chances are that someone has already done some research on it. If so, researching as originally planned would be a waste of time.
But literature review may reveal other questions that remain to be answered.
By familiarizing the researcher with existing research and theory in an area, a researcher can revise the research project to explore some newly identified questions.
The literature review has several purposes: first, it can give ideas about research design, key issues, and data collection methods.
Second, it may identify problems in the research proposal and save the researcher from repeating other mistakes.
Third, it increases human knowledge that every contribution builds on or relates to previous work.
Finally, it helps identify the work’s intellectual roots and show familiarity with existing ideas, information, and practices related to the area of interest.
Secondary sources provide valuable background information which may help a researcher to formulate issues.
For the literature review, it is useful to create a bibliography. A bibliography helps identify all the important and available resources.
Second, it presents an overview of the subject being researched.
Why is it a literature review? The literature review serves the following objectives:
- to show knowledge of relevant literature;
- to establish what has been written, i.e., to establish originality;
- to establish interest in the topic; and
- to show the context of research.
However, the literature review is not simply a summary of the relevant literature. It is the synthesis of and critical approach to the relevant literature. A researcher should not try to bring everything into a literature review.
Only relevant literature which helps one to develop his argument should be reviewed.
There doesn’t need to be a separate chapter on the literature review. For example, suppose the research project is a doctoral or M.Phil thesis.
In that case, a literature review may be presented in one chapter or distributed at appropriate places in separate chapters of a thesis or research work.
However, literature review constitutes an important part of the doctoral or Mphil thesis.
It means that a Ph.D. or M.Phil candidate should thoroughly understand their chosen field before conducting original or substantial research.
In a literature review for a thesis or dissertation, the researcher should synthesize prior research works to gain a new perspective and critically analyze the existing knowledge to build a new argument.
7. Outline of Research
After formulating the hypothesis, the next step is to prepare a tentative outline of the proposed research. The outlines of the study will be divided into sections and sub-sections.
A well-designed outline is crucial for successful research work. An outline is simply an orderly plan, showing the division and arrangement of ideas in writing.
Its principal function is to indicate the relationship of these ideas to each other. The outline should not be minutely detailed.
But it should not be so brief or vague. A well-structured research outline shows relationships among ideas; each subheading must be directly related and subordinate to the heading under which it appears.
Thus, creating an outline allows the researcher to organize their ideas to provide the most effective focus for the research.
Moreover, outlining can itself suggest new ideas and perspectives. There is no formula for outlining that will work for every research.
However, the following points need to be considered:
- What are the key points to be analyzed?
- What is the most logical order in which to make those points?
- How do the different parts of research relate to each other?
- How does the legal authority the researcher intends to rely on fit into his arguments?
The outline can be expanded, modified, and revised as research progresses.
For this reason, the framing of an outline may not be completed until the research project is finished. The researcher should be flexible and keep his mind open to revising or adjusting the outline as the research progresses.
One may find that the initial outline is incomplete or too narrow, or too broad.
8. Conceptual and Theoretical Framework of Research
In every research activity, concepts are used to develop a framework to “guide the research processes and investigation approach” of what is known as a conceptual framework.
A concept is an abstraction formed by generalizations from particulars. Concepts are the building blocks of theory and represent the points around which research is conducted.
The conceptual framework may be based on analyzing key concepts such as ‘law,’ ‘property, ‘rights, ‘equality,’ ‘justice,’ ‘fairness,’ and so on.
The conceptual framework can be contrasted with an empirical approach, which is, in principle, testable through controlled experiments, careful observations, or the analysis of past events.
On the other hand, the conceptual approach is a search for meanings of terms and concepts whose validity is self-evident. In general, the researcher should explain certain concepts for his study.
He should describe the context, problem, possible answers to the problem, and evaluation, which may be positive or negative recommendations.
In carrying out research, a conceptual framework is needed to set up the conceptual tools, criteria, and logic for the research, help with the thesis structure, form a basis for data selection, and ensure that conclusions answer the research questions.
Thus, a conceptual approach is a tool helping with scientific thinking and systematic research. It also facilitates the coherence of research.
The conceptual framework helps to convince the main arguments of the research work. It also helps thesis structure and forms a basis for data selection, and ensures that conclusions answer the research questions.
The concept should be distinguished from conceptualization. While concepts deal with specific aspects of concrete reality and must be defined in abstract terms, conceptualization is forming or making concepts. Conversely, conceptualization is the process of forming or making concepts from situations or facts.
Thus, it is a mental process whereby fuzzy and imprecise notions are made more specific. It produces a specific agreed-upon meaning for a concept for research.
Legal research may revolve around one core theory or several theories. The theory has been defined as a set of interconnected constructs, definitions, and propositions that present a systematic view of phenomena by specifying relations among variables to explain and predict phenomena.”
Theories being highly abstract thought processes are profoundly helpful for understanding the experienced world and perceiving reality.
This involves different understandings or explanations of truth, reality, knowledge development, acquisition, application evaluation, and critique.
One or more theories can guide the directions taken by the research.
But, first, a researcher has to identify what theories are potentially used in research. Theories represent a particular way to understand the problem with which they deal.
Such theories describe and explain why things happen in their most developed and sophisticated forms.
Theories tend to be abstract.
But they provide fundamental insight into the problem or issue under research, and a theoretical framework is a logical analysis of the basic theories that arise in law.
Thus, legal researchers must recognize the pervasiveness and value of theories. A theoretical framework may center around a grand law or social development theory.
In legal research, theories can be drawn from the different schools of thought in jurisprudence or other disciplines such as political science, sociology, or economics.
For example, natural law theory should be the central reference point in research on the moral aspect of law or particular legislation.
Research on criminal law should involve logical analysis of theories of punishment, the presumption of innocence, or the principle of fault.
Similarly, in analyzing the constitutional issue, the argument may be built on constitutional theories such as separation of power, due process of law, judicial review, or basic structure of the constitution.
Theoretical analysis is often needed to postulate the relationship between variables or conditions under research. It also helps to describe, explain and predict phenomena under research.
The theoretical framework may be applied to define the research question, formulate a hypothesis, and structure research accordingly.
If legal research aims to generate new theories, analyzing existing theories is imperative for providing a framework for new knowledge.
To be a theory, a statement needs to take the form of universal statements. This means that it contains a proposition that applies in general and is not restricted to unique or particular circumstances.
The quest for originality is a perennial problem for a researcher. In particular, originality is a prerequisite for obtaining a Ph.D. as it is awarded mainly for ‘an original contribution to knowledge.’
In search of originality, a researcher can develop an individual viewpoint, use investigative resources, evaluate previous works and originally organize his or her findings.
The originality of research work can be measured by discovering hitherto unknown facts or applying research methods and new interpretations. The creation of new knowledge can show originality.
Research should be built upon the cutting edge of existing knowledge to create new knowledge. One needs to think about what has been achieved in research or thesis. The novelty of the approach may be in whole or part of a thesis.
A researcher can demonstrate how his contribution relates to existing knowledge.
Originality comes from selecting and studying a new topic with established methods and linking what is usually unrelated.
Originality can also be achieved by adopting an inter-disciplinary approach and developing a new insight on issues that are not previously known.
It can also be demonstrated by indicating future development in the law on a particular issue. The mere personal opinion not substantiated by adequate explanation is not originality.
Eight acceptable ways of obtaining originality in the research project or thesis:
- setting down a major piece of new information in writing for the first time;
- continuing a previously original piece of work;
- showing originality in testing somebody’s idea;
- carrying out empirical work that has not been done before;
- using already known material but with a new interpretation;
- taking a particular technique and applying it in a new area;
- being cross-disciplinary and using different methodologies;
- adding to knowledge in a way that has not been done before.